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Supreme Court Ruling:
3. Implications for Insurers, Employers
By Stephen Smith
June 30, 1998

Part of the Supreme Court Ruling series:
1. Reproduction Called a "Major Life Activity"
2. Potential Landmark for Infertile Americans
3. Implications for Insurers, Employers

A GROWING NUMBER OF INFERTILE PEOPLE have sued their employers and insurance companies claiming that refusal to cover their condition - or provide time off for treatments - is discrimination against them as disabled people. Will the Bragdon decision suddenly clear the way for infertile Americans to get complete coverage? Chicago attorney and reproductive law expert Vicky Bush-Joseph suspects not. Bush-Joseph says infertile couples will have to continue to fight for coverage in the courts. But, she says, the Supreme Court provided a powerful new weapon to use against employers and insurance companies.

"We'll hit them over the head with this decision," Bush-Joseph said. "Some employers that have dug in their heels a little more strongly, saying they want to litigate, I would be hopeful that they would back off and start providing coverage."

While the Supreme Court ruling is a potential boon to infertile Americans, there remain many unanswered questions. University of Minnesota Law professor and medical ethicist Susan Wolf says there will be an ongoing legal debate over what kinds of infertility are covered. "For example, let's say a 45 year old woman comes forward and says, 'I want to engage in infertility treatment, because at my age it is extremely hard to conceive,'" Wolf said. "There are a lot of infertility patients like that. I would expect the courts will hesitate before saying that there is ADA coverage there. Where is the physical impairment? Age? Is age alone a physical impairment? I think a lot of courts will say no."

And what of older men who wish to have children and cannot? Will the ruling mean that insurance companies will have to pay for male impotence treatments such as the drug Viagra? Wolf chuckled. "That's a very interesting question," She said. "If an inability to maintain an erection caused a man to be infertile, I think he would have a reasonable claim that two major life activities were being interfered with. One is reproduction and the other is sex. There is some language in this decision that suggests that sex itself may constitute a major life activity."

In his majority opinion, Justice Kennedy wrote: "Reproduction and the sexual dynamics that surround it are central to the life process itself."

Nearly a dozen states require employer-provided health plans to cover infertility treatments. Similar legislation was introduced this year in Congress. The insurance industry opposes such mandates, saying the requirements increase the cost of health insurance to companies and employees. But infertility advocates counter that the increase is just a few dollars per month for each policyholder.

Meanwhile, the discrimination issue may not concern employers all that much. Paul Fronstin, a senior health policy analyst at the nonpartisan Employee Benefit Research Institute in Washington, D.C., says the total number of workers affected by infertility is so small that the Bragdon decision is unlikely to worry personnel executives. "They're more concerned about benefits that lots of employees take advantage of," Fronstin said, such as emergency room care or referrals to high-priced medical specialists.

While the HIV ruling provides hope for infertile Americans who want better insurance coverage, lawyers on both sides expect many more court battles before such coverage is routine.

Back to: 1. Reproduction Called a "Major Life Activity"

The Fertility Race